By Dan Kennedy • The press, politics, technology, culture and other passions

Gay marriage and the state constitution

Now that the latest attempt to outlaw same-sex marriage has ended, I thought I’d share some thoughts about the procedures used by gay-marriage supporters.

Some of this is repetition, and virtually none of it is original with me. But I’d like to pull together a few strands in order to address the question of whether the Legislature acted illegally or unconstitutionally (almost but not quite the same thing) by refusing to take up a constitutional amendment to ban gay marriage. Those who believe that legislators acted improperly have a serious argument to make. I think they’re wrong, but it’s a close call.

Let’s begin with the whole notion of what a constitutional amendment is. In theory, it can be anything — it is the most radical step the government can take. At the federal level, you could bring back slavery and deport anyone whose last name begins with “Q,” and there’s nothing that anyone — not even the Supreme Court — could do about it. By definition, a constitutional amendment cannot be unconstitutional, because it’s part of the constitution. (You couldn’t take such radical steps at the state level, because state constitutions may not grant fewer rights than the U.S. Constitution.)

Given these facts, it ought to be extraordinarily difficult to amend a constitution. At the federal level, it is: you need two-thirds of each branch of Congress and three-fourths of the state legislatures. In Massachusetts, though, amending the state constitution by citizen petition is ridiculously easy. Once a petition comes before it, the Legislature, meeting in joint session as a constitutional convention, need only muster one-fourth of its members to keep the amendment alive. The amendment must garner a one-fourth vote again during the next session of the Legislature, and then it goes on the ballot. If it passes by a simple majority vote, it becomes part of the state constitution. Thus, 50 percent of the voters plus one would be enough to deny gay and lesbian couples the right to marry.

The anti-gay-marriage crowd’s cry of “let the people decide” is, on its face, ludicrous. By requiring that 25 percent of the Legislature approve an amendment in two consecutive sessions before sending it to the voters, the state constitution acts as a check on the most dangerous measures. You can get 25 percent for almost anything; but you can’t get it for everything. For a legislator to vote “yes” merely for the sake of putting the question on the ballot would be irresponsible.

The proposed gay-marriage ban, though, is another matter. Although I think it’s a terrible idea, there is nothing inherently dangerous about it. Plenty of states have amended their constitutions in order to prevent gay marriage from being legalized, and all of them have survived. The gay-marriage ban also clearly enjoys the support of more than 25 percent of Massachusetts legislators, though less than a majority. Which is what brings us to our current dilemma.

There is a school of thought — more reasonable than “let the people decide” — that argues that the Legislature has a constitutional obligation to hold an up-or-down vote on constitutional amendments. Here is the language from the Massachusetts Constitution:

Section 3. Amendment of Proposed Amendments. A proposal for an amendment to the constitution introduced by initiative petition shall be voted upon in the form in which it was introduced, unless such amendment is amended by vote of three-fourths of the members voting thereon in joint session, which vote shall be taken by call of the yeas and nays if called for by any member.

Section 4. Legislative Action. Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays, which shall be entered upon the journals of the two houses; and an unfavorable vote at any stage preceding final action shall be verified by call of the yeas and nays, to be entered in like manner. At such joint session a legislative amendment receiving the affirmative votes of a majority of all the members elected, or an initiative amendment receiving the affirmative votes of not less than one-fourth of all the members elected, shall be referred to the next general court.

This would seem to argue that, indeed, the Legislature must vote on the amendment itself, and not on a procedural question such as yesterday’s motion to recess, which only required a majority. David Kravitz of Blue Mass. Group made an interesting case for this last summer, writing:

There’s a right way to defeat the anti-marriage amendment in the legislature: convince 151 legislators to vote “no.” If that happens, then the backers of the amendment have lost fair and square, and it’s game over. But if the amendment isn’t allowed to come up for a vote, it’s a good day for Kerry Healey, and a bad day for the democratic process.

That’s the heart of the argument, and Kravitz puts it well. Thus it seems to me that those of us who defend the right to kill the anti-gay-marriage amendment by any means necessary need to explain why the Legislature is not obligated to vote on the measure. And to that, I would offer the following:

1. The Legislature, meeting as a constitutional convention, is a parliamentary body with its own rules and procedures. If the moderator — the Senate president — recognizes a member who then moves for a recess, is he supposed to rule that motion out of order? The customary procedures of the Legislature allow for members to call for a recess, and such a motion need only pass by a simple majority. Anyone who’s familiar with Robert’s Rules of Order should understand that. Proponents of a constitutional amendment need to get 25 percent by following the rules, not by having some outside authority put its thumb on the scale by suspending the rules.

2. The state’s Supreme Judicial Court is the arbiter of whether such parliamentary maneuvers are unconstitutional, and it has never issued a clear ruling saying that they aren’t. Which brings me to —

3. The anti-gay-marriage amendment is far from the only proposed amendment that has been killed through parliamentary maneuvers such as yesterday’s. On July 21, 2002, Boston Globe columnist Jeff Jacoby noted that, 10 years earlier, then-Senate president William Bulger had used the very same tactics to kill an amendment that would have imposed term limits. And to return to #2, the SJC subsequently ruled that it did not have the authority to force the Legislature to vote. Jacoby wrote:

The sleazy maneuver succeeded. The amendment never made it to the ballot. Its proponents asked the SJC to order the Legislature to perform its duty, but the justices said they didn’t have that power. Still, they made it clear that Bulger and his minions had violated the Constitution: “Efforts to obtain term limits by a constitutional amendment foundered,” they wrote, “because of the refusal of the Legislature in joint session to take final action on such a proposal as the Constitution of the Commonwealth directed.”

As Jacoby properly observed, the SJC declined to present Bulger with a good-government award. But it didn’t say he couldn’t do what he’d done. Courts do have ways of enforcing their orders, which leads me to believe that the decision fell short of finding that Bulger had violated the constitution, Jacoby’s interpretation notwithstanding. After all, a few years ago, the SJC started selling off state property in order to fund the voter-approved clean-elections law after the Legislature refused to appropriate any money. (The law was subsequently repealed.)

And that’s just one example. As Steve Bailey reports in today’s Globe, the Legislature this week also declined to act on a health-care amendment, and no one is holding up signs saying, “Let the people decide!” And writing in Bay Windows recently, Susan Ryan-Vollmar pointed out that the Legislature has ignored proposed amendments more often than it votes on them:

In the race to appease the good government pundits huffing and puffing about process and giving voters their due, many seem to have forgotten the history of initiative petitions in this state. In the last 100 years, lawmakers have considered nine amendments to the constitution initiated by citizens’ petitions. Only four were voted on by lawmakers. Three advanced to the ballot: a 1938 measure calling for biennial budgets and legislative sessions (which voters approved); a 1974 measure allowing highway taxes to be used for mass transit projects (which voters approved); and a 1994 measure calling for graduated income tax rates (which voters defeated). The fourth, a 1934 measure on biennial budgets and legislative sessions, was defeated by lawmakers.

The other five citizens’ petitions were never voted on. In 1982, a measure that would have changed the way the state budget is handled died when lawmakers adjourned the ConCon without taking action on the amendment. In 1990 two proposals — one dealing with reproductive rights and another with education — died when lawmakers failed to make a quorum for the ConCon. In 1992 a measure on term limits for elected officials died when lawmakers adjourned the ConCon. And in 2002, a measure seeking to amend the state constitution to prevent same-sex couples from marrying died when lawmakers adjourned the ConCon.

You may not like the way the Legislature does business when taking up constitutional amendments. But if you want to argue that legislators have a unique responsibility to vote on an amendment that would take away rights from your gay and lesbian neighbors, you’ve got to ignore a lot: the Legislature’s right to follow its own rules and procedures; the lack of any clear guidance from the state’s highest court; and a century’s worth of history and precedent.

And, yes, the Legislature this week did the right thing.


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12 Comments

  1. noternie

    A very thorough and serious answer to the issue. Also a good example of why people don’t like lawyers.Doesn’t it feel like adjourning is following the rules, but that the adjournment rule is a huge loophole that probably should be closed?I think it should be much harder to admend the constitution, but I also think the process should ensure that an ammendment properly proposed gets properly considered. Unless you’d like to inject Rush into an argument about ammending the Massachusetts Constitution and say “if you choose not to decide, you still have made a choice.”We do already have the pocket veto.BTW: I support gay marriage and I’m very happily married to a lawyer.

  2. Anonymous

    A very thorough, and detailed breakdown. Here’s my breakdown: Civil rights are not matters to be subjected to the whims of popular opinion.

  3. TC

    Everyone is a process liberal when it comes to someone else’s rights. Dan made a great point about parliamentary rules. All matters before any deliberative body are subject to them. I am glad the amendment was stopped. After all, opponents of gay marriage would hardly have relied on reasoned discourse in any campaign.

  4. Anonymous

    Dan: You left out of your discussion Section 2 of the same portion of the state constitution, which includes this relevant passage: “if the two houses fail to agree upon a time for holding any joint session hereby required, or fail to continue the same from time to time until final action has been taken upon all amendments pending, the governor shall call such joint session or continuance thereof.”This is why they’ve postponed until after Romney leaves office — because they assume that Patrick will ignore this duty to reconvene the ConCon. (Whether Patrick is obliged to or merely has the option to is another question.)But the fact that the authors specified a provision for a specific course of action, in this case the legislature not voting on an initiative amendment, is usually taken by the courts to signal that the framers anticipated and deliberately allowed for such action.I would also say that the framers, having explicitly anticipated that the legislature could recess indefinitely without taking action, could easily have worded the relevant portion of Section 4 in the presumptive. Ie, instead of requiring “the affirmative votes of not less than one-fourth,” for referral it could have made referral automatic at the end of the legislative session unless voted against by not less than three-fourths…

  5. Anonymous

    One supposes these procedural rules exist precisely because the state Constitution is relatively easy to amend (compared the say the federal C., or those of other states where amending requires more than one-fourth of the legislature — and by the way, do any states where an anti-gay-marriage amendment has been passed have stricter (or laxer) rules for doing so than Mass.? — just curious).What i’m saying is that so much of what happens at the intersection of legislation, politics and individual rights is governed by the organic push-me-pull-you of these three forces working all at once. A groundswell of voters insistent on banning gay marriage could in principle punish the legislators using parliamentary rules to frustrate them by voting them out of office asap. So is this result a democratic phenomenon, or an autocratic one? beats me. But it’s another reason why, if you’ll forgive the retreat to a bromide, that “Democracy is the worst form of government except for all those others that have been tried” (Churchill).

  6. amusedbutinformedobserver

    Supporters of the Supreme Court decision establish the right of gays to marry ought to resist the vapid attempts to parse the state Constitution to create a requirement that the General Court vote on each and every amendment set before it.There is no such requirement that the legislature must take a vote. One cannot take a single sentence from a section of the Constitution and forget the rest of the section. This is what the gun nuts do with the second amendment. It doesn’t hold water there and it shouldn’t here.The constitution requires that any vote taken by the legislature be on the amendment as it was introduced unless the amendment is amended by 3/4 vote. This is in a section referring to “amendment of proposed amendments.” It means simply that any vote by the legislature on an amendment submitted by initiative petition must be on the amendment as submitted unless a 3/4ths majority is mustered to change the wording. This section does not impose a requirement that a vote be taken. It is also instructive that no remedy for failing to vote is included.Section 5 of this same amendment provides that “if an initiative amendment or a legislative substitute shall again receive the affirmative votes of a least one-fourth of all the members elected” it goes to the people. There is no reference to a required vote; the amendment says only that if it gets the affirmative vote of a quarter of the membership, it goes forward.The constitutional amendment conferring the right to initiate an amendment by initiative petition also deals with LAWS submitted by initiative petition — and contains different language: “a vote shall be taken by yeas and nays in both houses.” There is no such language in the section to amend the CONSTITUTION by initiative. The section dealing with initiative petitions was subsequently amended to provide for a second round of petition signatures to submit the directly matter to the people if the legislature fails to enact the proposed law. No such amendment or clarification has been attached to the constitution with respect to amending the constitution by initiative petition. There you have it. The framers of the constitution required a vote on initiative petition laws and subsequently provided a remedy if the vote was not taken. If the framers wanted a mandatory vote on every constitutional amendment proposed by initiative, they would have stated so in language as explicit as in a subsequent section of the same amendment to the consititution.

  7. Anonymous

    i think this amusing person has a point — john adams wrote our C., and he was pretty detail oriented, having helped write the US C. no specific remedy exists for getting around a legislature hell-bent on frustrating an amendment vote. but again, just because they can do it doesnt mean they should do it, and if we’d just elected a guv by 60-40 whose key issue was banning gay marriage, the message from the electorate would have been clear: let the thing go to a vote. we elected a different guv. yet again, the system checks and balances itself, aggravating perhaps, but it beats civil war.

  8. Dan Kennedy

    Actually, the ability to amend the Massachusetts Constitution by initiative petition is a Progressive Era reform. John Adams had nothing to do with it. I suspect he would have been appalled by the idea.

  9. Susan Ryan-Vollmar

    This is the most reasoned analysis on the question of whether or not the legislature is required to vote on an initiative petition that I’ve read yet.Great work.

  10. Steve

    Dan – Thanks for reading the constitution so I don’t have to. I gave it an honest try, but when I got to the part about amendments needing 25% of the legislature I figured I was reading it wrong.One thing that intrigued me in my reading was Section 2 of Article 48 – the section that enumerates the things that can’t be the subject of initiative petitions. One of its paragraphs is devoted to the individual rights that are not subject to initative petition. Marriage is not among these rights (nor are many freedoms that are taken for granted). What gay marriage proponents are saying is that the right to marry shouldn’t be suject to the will of the majority. The ConCon apparently agreed. (As do I.)The legislature should amend this section to include more individual rights. (Maybe not-so-ironic note: Section 2 cannot itself be the subject of initiative petition!)

  11. bostonph

    Thank you. This is one of the best reads I’ve had in a log time.By contrast BMG (who seem intent on jumping the shark) have reduced the issue to “let the people vote.” BTW, neither HubPolitics or BMG have come out of the election well. HubPolitics has become shrill and sulky. BMG has become pedantic and arrogant. Someone should tell both of them they don’t actually run their respective parties. In BMG’s case, someone should tell them *they* weren’t elected.

  12. Anonymous

    Why should any citizen obey any law enacted by a legislative body that ignores its own obligations because they do not want to. Wow, what arrogance! We obey laws and regulation we do not like because we accept the principal of law. The people who make those laws have shown us that the Constitution is open to interpretation at every level. Bad juju people! Constitutional Rights mean nothing if the Constitution itself is nothing. We have a problem here Huston and it is bad! The state legislators have done an evil thing by turning their backs on clear constitutional mandates. How can the ACLU, the courts or any DA expect citizens or illegals for that matter to obey laws predicated on Constitutional Rights! This is like the family priest raping a family’s kids then telling the parents and kids to be good Christians and obey him because he is a priest. The legislative priests have just raped the Constitution and are telling the citizens it has f**ked over to be good and obedient citizens and obey the laws they pass. Are they NUTS! The message is clear! Change can come and it does not have to be Constitutional. You just need to get enough legislators to act for you the way you want and F the Constitution. What is true at the state level can be equally applied to the federal level since their has been total silence from the federal courts on this issue too. One can argue that the Supreme Court has no real legal authority to do anything. The Supreme Court of the United States has no Constitutional Authority to do what it does. Maybe it is time to tell the emperor that he has no clothes on and to go away. The courts have “rubber stamped” Massachusetts ignoring State Constitutional mandates and are just as guilty or trend setting, depending on your point of view, as the state legislators of Massachusetts. The Shadow Government has done its job. It has legitimized unconstitutional acts by stating precedent – it has been done before so it is okay folks. This is like a bank robber being arrested and claiming he has done nothing wrong because he has done it before. What absolute self-serving arrogance and B.S.! I fear what Massachusetts has done what Hitler, Stalin, Mao and many other have failed to do. Destroy the underlying unity that united all Americans – the belief in the sanctity and power of the Constitutional Process, that those in power who swore an oath to defend and protect the Constitution would do so and that the Constitution meant something and should be followed and not ignored! God forgive them for their betrayal and treachery. The Shadow Government has won a great victory this year, the destruction of Belief that legislators, judges and attorneys were all represented Constitutional authority and the birth of legislators, judges and attorneys as thugs!

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